What to expect from the Report Stage of the EU Withdrawal Bill in the House of Lords

The Government’s flagship European Union Withdrawal Bill returns to the House of Lords next week for its Report Stage.

As BrexitCentral’s Hugh Bennett pointed outhereon the Bill’s publication last July, this piece of legislation “is little more than a procedural Bill to implement the fact that the UK will no longer be a part of the EU’s legal order once we have left the European Union” that will “facilitate the orderly transfer of existing EU law onto the UK statute books, allowing it to continue to function as it does now, while stopping the flow of new EU legislation after we have left.”

Nonetheless, its Committee Stage in the Upper House took up no fewer than twelve full days which were, by all accounts, more heat than light, and during which – as the convention goes – no amendments were pushed to the vote.

This will change at Report Stage, beginning next Wednesday 18th April, with the five further days allocated for deliberation being 23rd, 25th and 30th April and 2nd and 8th May. At this juncture we can expect votes and, in all likelihood, government defeats that will need to be reversed in due course in the House of Commons. One thing the Committee Stage debates have done is to help establish which areas are likely to be contentious and subject to divisions.

Government amendments

In advance of the first day of Report Stage next week, the Brexit minister in the Lords, Lord Callanan, has tabled a small number of government amendments (included inthis clutch) in response to the debates that were had during Committee Stage.

In a letter to fellow peers seen by BrexitCentral, he explains that they “reflect commitments that were made from the despatch box” at the Committee Stage. He continues:

“I hope that they will be welcomed as a clear demonstration of the Government’s willingness to act where suggestions are made that will improve the legislation, or that will make it more acceptable to Parliament without putting at risk its essential objectives of providing maximum legal certainty at the point of exit. This Bill is not an optional part of leaving the EU; it is essential if we are to leave the EU in a smooth and orderly way.”

A senior DExEU source has emphasised to me that they are “technical in nature” and “in no way compromise on the major principles of the Bill”.

These government amendments cover:

European Court of Justice case law

The Government has made drafting amendments to Clause 6(2) to provide clarity over its position that domestic courts and tribunals should in no way be bound by, or required to consider, anything done by the ECJ or the EU itself after Brexit, but that they should be able to take such things into account where it is helpful to do so. The changes aim to clarify that the Government does not expect the judiciary to make policy decisions in their interpretation of the law.

Status of retained EU law

The Government maintains that according the status of domestic primary legislation to all retained direct EU law for all purposes (as desired by some, such as the Lords Constitution Committee) would present significant practical and constitutional problems, which could have considerable and unforeseen impacts on the domestic statute book. However, to provide the maximum clarity and legal certainty in this area, ministers have tabled amendments to set out the status of retained direct EU law, providing for a distinction between how retained principal EU Regulations and retained EU tertiary legislation may be amended in the future:

EU Regulations will have a status akin to that of UK primary legislation, amendable in the same set of circumstances and subject to the same conditions of scrutiny as Acts of Parliament

Retained direct EU tertiary legislation will be amendable by powers than can amend subordinate legislation

Rights to challenge existing EU law

The Government maintains that post-Brexit people should not be able to indefinitely make legal challenges founded in the general principles of EU law; but in response to concerns raised at Committee Stage, the Government has tabled amendments which would suspend the prohibition in the Bill against making certain claims for up to two years after exit day.

Callanan explained this to colleagues in his letter thus: “This will ensure that individuals and businesses would still be able to bring challenges which relate to pre-exit causes of action; and are against legislation which is not an Act of Parliament or a rule of law. These amendments will therefore ensure that the Bill strikes a good balance between providing certainty and ensuring that people still have a fair opportunity to bring challenges in relation to something which happened before exit.”

Similarly, another amendment ensures that where a breach occurs pre-exit, the Bill will not prohibit individuals from seeking damages for up to two years after exit day.

Contentious areas subject to cross-party amendments

We can expect those government amendments to be nodded through without a vote. And there may be disruptive amendments from ultra-Remainers which get put the vote but fall because of a lack of widespread support across all sides of the House, in particular without the backing of the Opposition front bench.

So the amendments which will be most likely to cause the Government headaches in terms of the voting arithmetic are those backed by the Labour front bench with support from all corners of the Lords.

The Labour peers have helpfully set out the areas covered by the most significant cross-party amendments in a briefing they have published onlinehere. Below is a summary of those areas and what the Labour leadership in the Upper House claim they are seeking to do – although whether the amendments would have the intended legal effect is another matter and will doubtless be open to debate…

Customs Union

Make the repeal of the 1972 European Communities Act conditional on a Minister laying a report before Parliament that outlines the steps taken to negotiate a customs union as part of the framework for a future UK-EU relationship

Limiting the scope of delegated (Henry VIII) powers

Prevent Ministers from making regulations where they deem it ‘appropriate’ rather than when it is ‘necessary’ to achieve the aim of a functioning statute book on exit day

Remove the ability of Ministers to establish public authorities, create new criminal offences, levy taxes or impose fees and charges, and even amend the Bill itself by statutory instrument

Restrict the power to make any consequential or transitional provisions following Brexit, without appropriate parliamentary scrutiny

Enhanced protections certain areas of EU legislation

Provide for enhanced protection for EU-derived rights for workers, consumers and the environment

Ensure the Charter of Fundamental Rights continues to have effect and that domestic courts have the guidance they need in relation to the ECJ, whilst ensuring that power remains in the hands of British judges

A ‘meaningful’ role for Parliament at the end of the negotiations

Formalise the Government’s commitment to a vote on the draft final withdrawal agreement before the corresponding vote in the European Parliament

Give the UK Parliament a vote before the Government can walk away with ‘No Deal’ and allow the House of Commons to decide what course of action the Government should take in the event of Parliament rejecting the draft withdrawal agreement, the promised additional statute, or the ‘No Deal’ scenario

Northern Ireland

Require Ministers and the devolved authorities to act in a way that is compatible with the 1998 Northern Ireland Act and to have due regard to the contents of the December 2017 UK-EU Joint Report, including the mutual recognition of the Belfast principles and current provisions on equalities and human rights

Prevent regulations made under Clauses 7, 8, 9 or 17 of this Bill from diminishing any form of North-South cooperation or introducing new border arrangements, unless these were subject to an agreement between the UK and Irish governments

Removing the Government’s fixed exit day

Remove the amendment passed in the Commons that defines exit day as “11pm on 29th March 2019” because Labour believe this “denies the Government any flexibility in the negotiations” by making it illegal for the UK to extend the Article 50 negotiations by even a single minute, even if the EU27 unanimously agreed to do so

Transitional arrangements

Remove the automatic exclusion of the ECJ until the end of any transitional period